Sunday, November 26, 2006

Hamdan's next case

Lawyers for Salim Ahmed Hamdan, in a sweeping challenge to the new Military Commissions Act, on Friday added a handful of new fundamental constitutional complaints as they filed the first full-scale brief by opponents. Hamdan, whose case led last June to perhaps the most important Supreme Court ruling ever on presidential war powers, is facing war crimes charges before a military commission to be set up by the new Act.

The new 45-page brief seeking to head off that trial was filed in U.S. District Court; his case (04-1519) returned to the Washington court after the Supreme Court ruling. (UPDATE: A new amicus brief, filed by four retired generals, two retired admirals and a retired Central Intelligence Agency officer, supports Hamdan's claim that he has a right to continued protection under the Geneva Conventions. That brief can be found here.)

The Justice Department takes the view, expressed in a number of pending cases, that the new Act stripped the federal courts of all jurisdiction to hear any habeas challenge by any war-on-terrorism detainee, no matter where that captive was taken prisoner. It notified the judge handling Hamdan's case, U.S. District Judge James Robertson, and other federal judges in Washington of the passage of the new court-stripping provisions. Robertson, in turn, treated that notice as a motion to dismiss, and called for briefs on it. The government's reply is due on Dec. 1.